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Court Gives Police More Immunity in Use of Deadly Force

Date Posted to Site: 11/10/2015

Amid sharply conflicting views of how to describe fatal shootings by police, the Supreme Court on Monday gave legal immunity to a Texas officer who killed a fleeing suspect by shooting at the car as it drove down a highway at high speed. The final vote in Mullenix v. Luna was eight to one, but Justices Antonin Scalia and Sonia Sotomayor (the sole dissenter) engaged in a duel over what to call such incidents.

Scalia’s view was that the Court should never use the phrase “deadly force” unless the officer’s actions were specifically aimed at harming the suspect’s body, while Sotomayor argued that the Court had endorsed the “shoot first, think later” approach. The Court’s unsigned main opinion, in a case decided without briefing and oral argument, used two phrases interchangeably: “excessive force” and “deadly force.”

The Court did not grant review in any new cases, and among significant orders, it turned aside a constitutional challenge to federal prosecutors’ use of data from cellphone towers to track a suspect’s movements, as well as a plea to protect the identity of private donors to a political advocacy group. It did not explain either of those denials.

The police shooting decision spared a Texas state trooper, Chadrin Lee Mullenix, from having to defend himself in court against a claim for money damages by the family of the man he killed with six rifle shots from the officer’s vantage point on a bridge over a highway. The driver, Israel Leija, Jr., had led several officers on a chase at speeds up to one hundred miles per hour along a superhighway in the panhandle of Texas, twice telephoning police to say that he had a gun and would shoot any police officers who tried to stop him. After his car crashed, he was found dead, and officers said there was no gun in the car.

The Court granted Mullenix what is called “qualified immunity” from the lawsuit, concluding that no binding court ruling had declared unconstitutional the specific situation that unfolded in this incident in March 2010. While the decision repeated the common rule that each use of police force should be judged on its specific facts, the Court said specifically that it had “never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.”

Because the ruling was so closely focused on the fact of the car chase, it did not appear to have created any new law for judging fatal shootings by police in other encounters as they enforce laws. The main opinion spoke of “the hazy legal backdrop” that lay behind the judging of the actions of Trooper Mullenix.

These were the factors that apparently influenced the Court’s ruling: the suspect had twice telephoned a police dispatcher and threatened to kill the pursuing officers; the “extremely high speeds” of the car chase; the fact that the suspect was intoxicated; and the threat to other officers as they laid out spikes in the roadway as an alternate way to try to stop the speeding car.

From all that appeared in the Court’s opinions, all of the Justices except Sotomayor joined in the result. Justice Scalia filed a separate statement saying that he joined only the outcome, not the majority’s reasoning. He argued that “it does not assist analysis to refer to all use of force that happens to kill the arrestee as the application of deadly force.” While police may sometimes use a level of force that is “sufficient to kill,” Scalia said, it should not be called “deadly force” unless the police had acted “with the object of harming” the suspect’s body.

Justice Sotomayor, in her dissenting opinion, chastised Trooper Mullenix for having no training for the use of his rifle in the situation presented, emphasizing that he had been advised by a superior officer to “stand by” and wait to see if other officers could stop the suspect’s car with road spikes; that he knew that spikes were being put under the bridge over the highway from which he fired; and that none of the other officers had voiced any concerns about their own safety. Moreover, the dissenting opinion said, Mullenix bragged about the incident after it was over, saying “How’s that for proactive?”

The Court, she concluded, has given its approval to “a ‘shoot first, think later’ approach to policing.” That, Sotomayor contended, “renders the protections of the Fourth Amendment hollow.”

In the denial of the cellphone tower data case (Davis v. United States). the Court did not offer any explanation, but the reason could have been that the conflict among federal appeals courts on the constitutionality of police use of that data to trace a suspect’s movements had ended recently when the U.S. Court of Appeals for the Fourth Circuit granted rehearing en banc, thus wiping out a decision that conflicted with the ruling that Davis was challenging, by the U.S. Court of Appeals for the Eleventh Circuit.

In Davis’s case, federal prosecutors used sixty-seven days of data from towers tracking his movement as he engaged in a series of armed robberies in the Miami area. The issue over the constitutionality of that law enforcement technique is sure to return to the Court in a future case.

The Court’s other denial of a significant new case (Center for Competitive Politics v. Harris) involved a claim that California state officials are demanding that the Center turn over documents it had filed with the Internal Revenue Service, revealing the identities of its private donors. The Center, which engages in public education efforts to protect the First Amendment right of free speech in politics, has contended that the forced disclosure of its donors will interfere with its supporters’ rights to engage in political activity with each other.

The Court took no action Monday on major new cases on Second Amendment gun rights and constitutional challenges to abortion clinic restrictions in Mississippi and Texas. The Court has now scheduled those for another look at its private Conference on Friday.

Taken from

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